Introduction

Ken Bourke

Hi I am Ken Bourke, proprietor of All About Conveyancing and welcome to our Conveyancing blog.

It deals with NSW Property Law and processes only. What you read here may not apply in any other state of Australia.

We will be updating our blog on a regular basis, so please check back soon.

We invite you to ask us something and you will get a reply within 24 hours – it’s us giving something back to the market that supports us.

Conveyancing Posts

Agents Disclosure Requirement regarding Property Inspection Reports

Starting 15 August 2016, Real Estate Agents have disclosure requirements related to pre-purchase property inspection reports. The concept is for these requirements to make it easier, and potentially cheaper, for a prospective home buyer to obtain pre-purchase building and pest inspection reports, and strata, neighbourhood or community scheme reports.

The agent is required to make a record of the following property inspection reports, but they only need to provide this information when the prospective buyer asks for the Sale Contract for the property.

• a building inspection report
• a pest inspection report
• a strata/community/neighbourhood inspection report
• a section 109 Certificate under the Strata Schemes Management Act 1996

The information required to be kept includes:
• the date on which the inspection was conducted
• who requested the report
• who prepared the report and their contact details
• whether the report author has professional indemnity insurance
• whether the report is available for re-purchase.

The following points are relevant to these requirements:
1. The agent is only required to keep records of reports that they are aware of – they are not required to make exhaustive enquiries to discover whether reports have been done,
2. No other parties, such as the vendor, the purchaser or the inspector have an obligation to tell the agent that the report exists,
3. Agents do not have to have a copy of the report itself,
4. The disclosure obligation of the agent arises only at the time the Purchaser asks for a copy of the Contract for Sale.

Conveyancing Posts

Swimming Pools

What you need to do if you own a Pool:

  1. Register it. This is now compulsory. Your pool can be registered online at www.swimmingpoolregister.nsw.gov.au. If your pool is not registered, you will be liable for a $220 penalty.
  2. From 29 April 2016, you will be required to provide a certificate of pool compliance when you sell your home (or even lease your home).

You can find more information on what compliance means at:

http://www.fairtrading.nsw.gov.au/ftw/Consumers/Product_and_service_safety/Pool_safety/Pool_fencing_requirements.page

 

 

 

Conveyancing Posts

Pre-Settlement Inspections

The Importance of that Final Inspection:

You are entitled to a final inspection of the property you are buying before you take possession of it. By this we mean that the Vendor cannot refuse you a final inspection within the last three days prior to settlement of your contract.

This inspection is probably the most important one of all.

The best time to do that inspection is after the property has been vacated by the previous occupants and as close to the time of settlement as possible. This narrows the window of opportunity for something to go wrong.

Things to Look for:

This inspection is all about the fact that you agreed to buy the property in a particular state (ie. the state it was in at the time of exchange of contracts). Therefore:

  1. Is everything that was in working order at that  time still in working order,
  2. Do those items included in the sale remain on the property,
  3. Has there been any damage to anything (other than through normal wear and tear),
  4. Has there been any excess rubbish left on the property.

Let’s not be picky about this; if the issue is small then just get on with it, but if you consider the issue is unjust then your best chance of getting that issue resolved is to request that it be resolved before you hand your money over.

What can you do about it ?

If you find an issue that you are unwilling to accept, then you have a couple of options:

  1. Since the Vendor is in breach of contract, you can with-hold settlement until the matter is resolved. Neither party can terminate the contract immediately for such a breach but you can delay settlement and give the Vendor time to resolve the problem,
  2. If a delay is not what you want (e.g. you may have already packed up your removalist and be waiting to move in), then it may be possible to continue with settlement but to with-hold part payment to the Vendor until the matter is resolved. Talk to your Licensed Conveyancer about arranging this.
Conveyancing Posts, General

The Neighborhood

You should ensure that the neighborhood that you are buying into meets your expectations. Do your homework.

  • Is the location suitable in terms of proximity to schools, parks, transport, medical facilities? You can find out these things through the council’s website and other on-line facilities if you are not in the area,
  • Drive by the property at all times of the day and in all weather conditions to get a feel for the neighborhood.
  • Talk to neighbors about their own experiences.

Do whatever you need to ensure that you are making a good choice not just in the house but also in the neighborhood.

If you want to find out more about this topic or others, just ask us or check out this web page:

www.allabout.net.au

Conveyancing Posts, General

Let the Buyer Beware

“CAVEAT EMPTOR”

You’ve probably heard this term before but what does it mean to you. Well, it is latin for “Let the buyer beware”. This is a doctrine applying to property whereby the buyer cannot recover from the seller for defects on the improvements.

One of the most important terms of the Contract is that you are purchasing the improvements and inclusions in their “current condition and state of repair”.

Perhaps the most common issue arising at the time of settlement is that the buyer finds a fault with the building or one if the items included in the sale that they didn’t previously know about. If you can prove that the fault was not there on the day you exchanged contracts to purchase the property, then the Vendor should correct the problem. “Proving it” is the issue.

There is probably no limit to the extent of pre-purchase inspections that you could do. However, they inconvenience the Vendor and they take time as well as costing you money so you need to be reasonable about it. Inspections that we would consider essential include:

Your own inspections – You should probably look at the property another time before locking yourself into a contract. You will notice more of the “little things” the second time. How far do you go ? Well, there are no rules; some people turn all the lights on to see if they work, they turn the elements of the stove on to see if it works, the air conditioner, the fans, the taps for water pressure, etc. Some people take photographs so that they can check before settlement that everything they expected to remain on the property have indeed remained on the property. It is up to you; the main thing is to satisfy yourself of the things that are important to you.

Pest Inspection – if the building has termites when you exchange contracts, then you have bought the termites as well. We would always recommend a pest inspection, it’s a small price to pay for certainty and you can’t be certain unless you get someone that knows what they are doing to look properly. Not only is a professional inspector qualified but he is insured against making a mistake. This one is a must.

Building Inspection – sometimes the building inspector finds major faults in the buildings to the extent that the buyer doesn’t proceed with the purchase. More often though, he will find things that you should know about before you buy because then you will know the things you can work on to prevent more significant damage later on. The building inspector will always find a fault because no building is perfect and whether that fault is minor or major, you should know about it.

If is often a good idea to do your inspections at different times of the day and in extreme weather conditions. For example, it will be hard to gauge the effectiveness of drainage when it is not raining, or of sunlight at night time.

If you want to find out more about this topic or others, check out this web page:

www.allabout.net.au

Conveyancing Posts, General

Be Clear About WHY you are buying

There are many reasons why people select a particular property to purchase, including:

a. Location

b. Price

c. Love of the Building

d. An intention to further develop

e. Proximity to friends and relatives

Etc.

What if you purchased a property with a particular intention in mind and then found out that what you intended to do with it was impossible? Here’s a few examples of what might go wrong:

  • The building you liked so much has a demolition order from council, or
  • You intend to demolish a building and construct an award winning design only to find that the existing house is heritage listed and you can’t touch it, or
  • You are a physiotherapist and you want to run your consulting rooms from the house you are buying, only to find out that council will not approve it for that, or
  • You are attracted to a property because the kids can walk to school from there, but the school is relocating within the next 12 months, or
  • You are buying a vacant lot to construct two villas as an investment, only to find that only one dwelling can be constructed on the site, or
  • You are buying a strata unit with the intention of constructing some outdoor decking only to find that the council has fire-proofing regulations that prevent the decking, or
  • You attend an auction and bid on a property just because it appears a bargain, only to find that the cost of repairing a water leak results in it not being such a bargain after all.

Try to write down the major reasons behind your choice of properties and then do your homework before you make an offer. Your Licensed Conveyancer will assist with all of this but you should tell them what is important to you. Can you be sure that your intended use is possible ?

If you want to find out more about this topic or others, check out this web page:

www.allabout.net.au

General

Get the Right Advice

“GET THE RIGHT ADVICE”

Most people don’t enter into the process of buying a home very often. When they do decide to buy, they probably have little idea of all the ins and outs of the entire process.

It’s hard to know exactly where to turn for good sound advice. Most people will open a discussion with their parents, their friends, their work colleagues, etc, and while you may get some great ideas from talking to these people, they may not necessarily be as up to date or as well informed as others.

Remember, this is probably the biggest financial transaction you have undertaken and the advice you receive (or more particularly if it is the wrong advice) will probably affect your life for a long time to come.

There is really no one person who can help you with every aspect of the transaction and the best advice we can give you is to seek specialist advice in each of the following areas:

a. Financial advice – Whilst we would all like to think that every transaction we do will turn to gold, the reality is that it doesn’t. You will be exposed to financial risks and you should go to someone that is trained and experienced in financial matters. This person will look at your own financial profile and will be able to direct you in terms of your borrowings, taxation implications, your capacity to repay and how to minimise the term and extent of your financial exposure.

b. Mortgage Advice – there are many different loan products available on the market and the one that suits you better than the rest may not be with the bank that you have always dealt with. Ask other lending bodies – banks, credit unions, cooperative housing societies or seek advice from a reputable mortgage broker who has access to all of those products that are available. Know what you can afford to spend before you start looking for a property.

c. Legal Advice – There are any number of legal pitfalls in property transactions. Licensed Conveyancers are specialists in Property Law; that is what they do. Your Licensed Conveyancer will describe the terms of the Contract to you, they will help you negotiate terms that are more favorable to you and they will ensure that you are aware of your own obligations as well as ensuring that the other party to the transaction honors their obligations. Most importantly they will discuss with you the characteristics of the property you are buying, which may or may not be exactly what you thought it was.

d. Building Quality Advice – Since the Seller does not have to admit to quality defects, you should get advice from a professional as to those defects if any. Know what you are getting in to before you buy it. Your licensed conveyancer will be able to assist with ordering these inspections.

If you want to find out more about this topic or others, check out this web page:

www.allabout.net.au

 

General

Where do I start

Conveyancing is the legal process of buying and selling property. There are lots of issues other than the legal ones for first home buyers, such as:

–          securing the right loan (you need a mortgage broker)

–          establishing your budget and saving the necessary deposit (a financial advisor may be able to assist with that)

–          finding the right property (your real estate agent will help you do that, but you should have a clear idea of what you are looking for and why)

This article addresses only the legal aspects of buying your first home.

 

Perhaps the first thing you should do is to see what benefits may be available to you. These are summarised as follows:

If you are a first home buyer, you WILL NOT receive any benefits unless you are buying a new home or vacant land to build a new home. In that case:

a) $15,000.00 grant is available if the value of the new home is < $650,000.00

b) Exemption concession from stamp duty may also be available to you if the new home is < $650,000.00 or if vacant land, the value is < $450,000.00

If you are NOT a First Home Buyer, there is still a grant available to you as long as you buy a NEW Home or Vacant land on which to build a NEW Home:

a) The grant is $5,000.00 with similar thresholds as apply to first home buyers,

b) There is a trick with this one – if someone has already claimed the grant for this particular lot, then it is NOT available to you. A classic example of this is where the builder or the person selling to you has already claimed the grant to build.

The only other beneift available is the Relocation Grant:

a) A grant of $7,000.00 is available if your are selling (or sold in the last 12 months) in a metropolitan area and you are buying in a regional area.

For more detailed information on this, check out the link:

http://www.allabout.net.au/benefits.html

Next, give some thought to how you might want to buy the property because the rules are quite different:

a)     Private Treaty—this is the process of you identifying a property, making an offer, the offer being accepted and contracts duly entered into to make the deal binding. The important thing for you in this scenario is to know the value in the area in which you are buying. The same home can be quite a bit different in price from one area to the next. Once you have made your offer and the vendor has accepted the offer, you may be asked to pay a “holding deposit”. This is nothing more that a show of good faith; it does not bind you to the deal and you will get the money back if you decide not to proceed. It does ensure though, that the agent will tell you of other offers being made. The milestone of a private treaty transaction is an “exchange” of contracts. This refers to the physical act of your signed contract being handed to the vendor and his signed contract being handed to you. Until that happens, you are not bound to buy and the vendor is not bound to sell. Once exchanged though, you will be bound by all terms of the contract so it is important that several things happen before you exchange contracts:

  1. Your loan (if you are borrowing) is approved “unconditionally”,
  2. You have arranged a deposit (normally 10% of the purchase price),
  3. You have satisfied yourself of the condition of the buildings, its improvements and inclusions. To do this you may like to obtain specialist advice from building inspectors, pest inspectors, surveyors or even council certifiers. The doctrine of “Caveat Emptor”, or Let the Buyer Beware, applies to buildings on the property,
  4. You have negotiated any terms that are specifically important to you (such as the settlement date or works that are to be completed).

b)     Auction – this is where you bid for the property and the highest bidder wins. The very significant difference with an auction is that as soon as the hammer falls at auction, the highest bidder must sign the contract, pay his deposit and exchange contracts immediately. This is the whole basis of an auction. Therefore, you must have all those things numbered i, ii, iii and iv above in place before the auction,

You would be taking an enormous risk if you attend an auction and buy without having consulted a licensed conveyancer prior to the auction.

We recommend that if you intend to bid at an auction, then you get a feel for how auctions work by attending others that you will not be bidding at, first.

 

There are other legal issues that come into play that you should be aware of:

a)     Gazumping – occurs when another buyer comes in with an offer above yours after your offer has been accepted but prior to you exchanging contracts. In NSW, you can’t prevent gazumping but you can manage the risk by progressing your due diligence as best you can and by keeping all parties informed of your progress.

b)     Cooling-off period – this lasts for 5 working days only from the date of exchange of contracts and gives you an option to change your mind in that time. It is there because it provides a way of locking the vendor into the sale whilst you go about your due diligence. It is common though that the Vendor will ask for the cooling off period to be waived and in that case, it is vital your due diligence is done before exchange. A cooling off period only applies to Private Treaty sales, it does not apply to auctions.

 

Whether you are buying under Private Treaty or Auction conditions, the process after exchange of contracts is the same. Most of the issues are dealt with by your Licensed Conveyancer but those issues that you need to attend to are:

a)     signing of your mortgage documents – if there is going to be a delay it is often because the documents required by your lender are not in order when it comes to settlement,

b)     signing of your Grant Application if applicable (arranged by your lender) and your Exemption from Stamp Duty Application if applicable (arranged by your Licensed Conveyancer). There is also a need to produce identification documents that satisfy the criteria outlined in the forms,

c)      arrange your insurance. Normally, the risk as far as property damage goes stays with the Vendor until the day of settlement, but you lender will want to see that the insurance is in place and it is good practice to arrange it well before settlement,

d)     final inspection of the property – when you purchased the property, you agreed to buy it in the condition it was in at the time. You need to make sure it is being delivered to you in the same condition and you should do that as close to the time of settlement as possible. This is the most common area of disputes in the Conveyancing process and you will have no recourse after settlement has taken place.

e)     make available the balance of funds (unless of course, all funds are coming from your lender). All About Conveyancing will provide you a complete balance sheet before settlement showing you exactly how figures have been calculated.

 

When the time comes for settlement, you don’t have to do anything other than wait for a call from your Licensed Conveyancer to say that the property is yours. You can then collect keys. Be aware, though that the date and time for settlement is not set in concrete. Sometimes things happen that cause delays and it might be as simple as a name being misspelled on a cheque. Sometimes they can be worked around and sometimes they can’t. It is prudent for you to have a contingency plan that allows for a delay. Once you have collected keys, it may be a good idea to have the locks changed in your new property; although keys have been given to you, you have no idea whether other keys exist and if so, who has them.

If you want to find out more about this topic or others, just ask us or check out this web page:

www.allabout.net.au

First Home Buyers